Toscano v. Lewis et al

Filing 326

ORDER Re 323 by Judge Edward M. Chen. (Attachments: # 1 Certificate/Proof of Service). (emcsec, COURT STAFF) (Filed on 1/18/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BENJAMIN K. TOSCANO, Plaintiff, 8 9 Case No. 12-cv-05893-EMC ORDER v. Docket No. 323 10 Defendants. 12 For the Northern District of California United States District Court 11 G. D. LEWIS, et al., 13 Plaintiff has filed a motion for an injunction compelling prison officials to return or replace 14 his property. Docket No. 323. He states that on December 30, 2016, two non-defendant 15 correctional officials “broke [his] TV and confiscated it along with other property items” and his 16 legal documents for this case. Id. at 1. Plaintiff asserts that Defendants and defense counsel 17 “ordered PBSP officials to confiscate [his] legal documents . . . as retaliation and so [he] will not 18 be prepared for trial.” Id. Plaintiff does not explain the basis for his speculation that Defendants 19 or defense counsel had anything to do with the incident. 20 Plaintiff’s request for an injunction compelling the return of his television and other 21 personal property by the non-defendants is DENIED. Docket No. 323. That requested relief is 22 outside the scope of this action. As the Court earlier informed Plaintiff, the Court will not grant 23 injunctive relief for matters outside the scope of this action. See Docket No. 265 at 2. 24 Plaintiff’s request for the return of his legal property pertaining to the remaining claims in 25 this action is DENIED as premature and incomplete. Docket No. 323. Absent unusual and 26 compelling circumstances not shown to be present here, federal courts generally are discouraged 27 from interfering with day-to-day prison administration decisions. See Turner v. Safley, 482 U.S. 28 78, 84-85 (1987). Plaintiff filed his motion just four days after his legal materials allegedly were 1 confiscated. Before he seeks intervention in prison operations, Plaintiff needs to use the prison 2 administrative appeals process to try to obtain the return of the legal materials. If the materials 3 have not yet been returned to him, Plaintiff should pursue diligently a prison administrative appeal 4 to seek the return of that legal property and seek Court intervention only if that fails. Further, 5 Plaintiff needs to provide some evidence, rather than just unsubstantiated speculation, that 6 Defendants and defense counsel ordered the confiscation to retaliate and thwart his efforts in this 7 action, if he seeks court intervention on that basis. Because it may take time for his inmate appeal 8 to be processed, and to avoid consuming judicial resource with another premature motion, Plaintiff 9 may not file a new motion until thirty days after the date this order is filed. The Court recognizes promptly. If Plaintiff files a new motion, he must include with it a copy of his inmate appeal and 12 For the Northern District of California Plaintiff has a trial date in this matter and expects prison authorities will act on his appeals 11 United States District Court 10 any response(s) thereto. 13 Although Defendants earlier filed a waiver of reply, as allowed by 42 U.S.C. § 1997e(g), 14 an answer will now be required due to the fact that this case has been set for trial. Within thirty 15 (30) days of the date of this order, the two remaining Defendants must file an answer, responding 16 to the allegations against them in the first amended complaint (Docket No. 20) and asserting any 17 affirmative defenses they have. See Fed. R. Civ. P. 8(b), (c). 18 19 IT IS SO ORDERED. 20 21 22 23 Dated: January 18, 2017 ______________________________________ EDWARD M. CHEN United States District Judge 24 25 26 27 28 2

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